As part of our Intellectual Property Litigation practice, we provide intellectual property indemnification & indemnity disputes litigation services.

Given the high costs of litigation, an IP indemnification agreement or clause can provide significant protection. IP indemnity agreements help limit risk and liability of a party should certain infringement issues arise. Our intellectual property counseling services include review and drafting of IP indemnity agreements as well as litigating in IP indemnification litigation cases.

IP Indemnity Agreements & IP Indemnification Litigation

IP indemnification clauses are common provisions in agreements between parties that desire to shift the risk of loss. In IP indemnification, an existing indemnity clause in an IP agreement determines which party bears the brunt of infringement risk. An IP indemnity clause may also include the obligation to “defend” and/or “hold harmless" the other party. Generally, an IP indemnification agreement obligates one party to compensate the other party for losses or damages covered by the indemnity clause.

For example, in litigation brought against a seller of infringing goods, an indemnified seller can shift defense of litigation to the supplier. Therefore, agreements involving intellectual property rights often include IP indemnification clauses. For example, the following types of agreements could include some form of indemnity:

  • Reseller Agreements

  • Manufacturing Agreements

  • Distribution Agreements

  • Sales of a Business or Assets

Indemnity Disputes

Even though indemnity agreements may be included within business transaction agreements, indemnity disputes and IP indemnification litigation can arise. Therefore, well-written IP indemnity agreements and clauses are important. Companies should seek Intellectual property attorneys with both knowledge and experience in reviewing and revising commercial agreements.

Often, indemnity disputes arise when language in an agreement claiming to provide indemnity is lacking specificity or can be interpreted in different ways. This can lead to IP indemnification litigation between parties attempting to offload risk to another when indemnity responsibility is unclear.

Importance of IP Indemnity to Avoid IP Indemnification Litigation

IP agreements can include various forms on intellectual property rights. In drafting IP indemnification clauses to avoid indemnity disputes, care should be taken to identify the specific type of IP rights. IP rights include patents, trademarks, copyrights, trade dress, and other similar rights. In drafting indemnification agreements, the type of IP rights should be clear as well as the specific circumstances that provide a party is not liable for certain damages. Without clear indemnity language, parties may end up in indemnity disputes, or worse, battling each other in IP indemnification litigation. Well-drafted IP indemnity clauses or IP hold harmless agreements can protect against acts of employees of the other party. They can also protect against third-party claims for various types of IP infringement.

IP Indemnification Considerations in Commercial Transactions

Getting adequate IP indemnification at the forefront of entering commercial transactions will help save on handling indemnity disputes and avoid costs of IP indemnification litigation. The scope of the IP rights indemnity obligations will likely differ depending on the following, among other factors:

  • The particular party to the transaction

  • Risk of third-party claims

  • Limitations on damages

  • Fiduciary relationships

  • Indemnity obligations

Our intellectual property attorneys have experience drafting and reviewing complex commercial agreements requiring IP indemnification clauses. We understand the type of IP indemnification litigation issues that arise in IP transactions. So, we are able to identify areas of concern in contracts involving IP rights requiring indemnity provisions. Additionally, we represent clients in IP litigation cases that trigger indemnity obligation or hold harmless clauses into effect.

Intellectual Property Indemnification Litigation and Indemnity Disputes

Read more about our litigation services at our intellectual property litigation overview page and our business litigation overview page, including Patent Indemnification Litigation.

Local Counsel for IP Indemnity Disputes

We also act as local counsel for out-of-state plaintiffs and defendants involved in intellectual property indemnification litigation in state and federal courts in Texas. See our Local Counsel page for more information regarding our services.

Additional Insights Regarding IP Indemnification

For more information on intellectual property indemnity agreements, see our Legal Insights and Industry Solutions pages.